Delhi District Court
State vs . Ganga Sahay on 26 October, 2012
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST): ROHINI COURTS: DELHI
Sessions Case No. 53/2012
Unique Case ID: 02404R0164772012
State Vs. Ganga Sahay
S/o Ram Sakal Sahay
R/o C8, Mange Ram Park,
Pooth Kalan, Delhi.
FIR No. : 169/2012
Police Station : Vijay Vihar
Under Section : 376 (2) (f) Indian Penal Code.
Date of committal to Sessions Court : 16.07.2012
Date on which orders were reserved : 28.09.2012
Date on which judgment pronounced : 10.10.2012
JUDGMENT
Brief Facts:
(1) As per the allegations on 17.05.2012 at about 12:30 PM at House No. C8, Mange Ram Park, Pooth Kalan, Delhi, the accused Ganga Sahay committed rape upon his own minor daughter aged about 9 years namely 'P' (name of the girl is withheld being the case under Section 376 (2) (f) IPC).
State Vs. Ganga Sahay, FIR No. 169/2012, Police Station Vijay Vihar Page 1 Case of prosecution in brief:
(2) The case of the prosecution in brief is that on 17.5.2012 on receipt of DD No. 63B, ASI Brij Mohan along with Ct. Vikramjeet reached at C8, Mange Ram Park, Pooth Kalan where he came to know that one child 'P' aged about 9 years had been raped by her father and he found the child profusely bleeding from her vagina.
The child prosecutrix was immediately taken to BSA Hospital and was got medically examined and thereafter statement of the mother of the child prosecutrix namely Anjula was recorded. (3) The complainant Anjula in her statement to the police has stated that she was residing on rent at House No. C8, Mange Ram Park, Pooth Kalan, Delhi, along with her family and was doing a private job in a factory and her husband was a rickshaw puller. She told the police that she had three daughters and two sons and her eldest daughter was married. She further told the police that on that day (17.5.2012) as usual she left the house for her duty at about 9:00 AM and at about 9:30 PM one boy from the neighbourhood came to her factory and informed that her husband Ganga Sahay committed galat kaam upon her daughter 'P' on which she immediately rushed to her house and found that her daughter crying and public persons and police officials were also present at there. She further informed the police that when she asked her daughter 'P' what had happened she (daughter) told her that her father had committed rape upon her and State Vs. Ganga Sahay, FIR No. 169/2012, Police Station Vijay Vihar Page 2 she was bleeding from her private parts and asked her to take her to the doctor.
(4) On the basis of statement of complainant Anjula, FIR was registered investigation was initiated. During investigations, the accused Ganga Sahay was arrested and after completing the investigations, the charge sheet was filed in the court. CHARGE:
(5) Charge under Section 376 (2) (f) was settled against the accused Ganga Sahay to which he pleaded not guilty and claim trial.
EVIDENCE:
(6) In order to discharge the onus upon it, the prosecution has examined as many as twenty one witnesses.
Public witnesses:
(7) PW10 is the prosecutrix 'P' aged about 9 years. (During the course of examination of child witness, this court has observed that she was unable to give the complete address and says that she is presently residing at her house along with elder sister who had come to stay with her as her mother was away, her testimony has been recorded in Camera proceedings conducted in the Chamber in the presence of Addl. PP for the State along with Ms. Vandana Chauhan, State Vs. Ganga Sahay, FIR No. 169/2012, Police Station Vijay Vihar Page 3 Advocate for Delhi Commission for Women and Sh. Rajiv Kaul, Ld. Amicus Curiae for the accused. Oath was exempted, the child being less than 12 years of age and has been examined in question answer form in vernacular.
(8) The child prosecutrix has told the Court that she had never gone to school and cannot read or write. She has explained that she can only write her name. The child has deposed that her father is a rickshaw puller and her mother is rag picker who picks up polythene bags (Panni kathi karti hai). According to the witness, they are five brothers and sisters out eldest is her sister who is already married, then her brother, then she herself, then her younger sister and last one is her younger brother. After being satisfied that the child witness was understanding the nature of questions being put to her, the statement of the child was recorded in verbatim. (9) According to the child she had come to the court along with her elder sister who was staying at her house for 1015 days.
The witness has deposed that her mother has gone to her native place at Begusarai, Bihar, to visit her Naan (maternal grandmother) who has received a fracture on her leg. According to the child witness, her father has done galat kaam with her. It was at this point that the Court observed that when the witness was asked to give complete details about the incident, she started speaking very slowly and appeared extremely embarrassed and ashamed. The child witness State Vs. Ganga Sahay, FIR No. 169/2012, Police Station Vijay Vihar Page 4 thereafter softly started narrating to the counsel for the DCW what had happened which was audible to the court and to everybody in the Chamber which included the Defence Counsel. According to the witness her father had left the house for his work in the morning after having food and her mother had also gone for for her work after taking her lunch with her. She along with her siblings was sleeping in the room when her father Ganga Sahay returned back home and started doing galat kaam with her. While narrating this this child paused on which the Court asked her to tell what had happened and the child explained that her father had removed her undergarments and forcibly put his private part inside her vagina and when she screamed he put his hand hand on her mouth and she felt extreme pain there was bleeding from her private part on which she started crying loudly. She has further deposed that on hearing her cries, large number of public persons gathered and the landlord also came and saved her and thereafter the landlady made a call at 100 number and in the meanwhile the public persons apprehended her father. According to the witness, in the meantime her younger sister called her mother and her mother came on which she informed her about the incident after which her mother gave beatings to her father (accused Ganga Sahay). The witness has deposed that thereafter the police reached at her house and took her to the hospital where her medical examination was got conducted.
State Vs. Ganga Sahay, FIR No. 169/2012, Police Station Vijay Vihar Page 5 (10) On court question, the witness has explained that at the time of incident, her father was in the state of intoxication and he used to consume alcohol daily. The witness has stated that previously also she had come to the court and her statement under Section 164 Cr.PC was recorded by the Ld. MM wherein she had stated the entire incident. She has identified by signatures at point A on her statement under Section 164 Cr.PC which is Ex.PW10/A. According to the witness after some days she was also taken to the hospital where her thumb impression was taken and it has been observed by the Court that this was for her ossification / age determination test. The ossification report of the child witness which is Ex.PW7/A has been shown to her and she has identified her thumb impressions at point encircled X. The child witness has explained that she remained in the hospital for five days (11) In her crossexamination by Ld. Amicus Curiae for accused, the witness has stated that her mother used to leave for her work at 9:00 AM and sometime she return by 6:00 PM and some time by 9:00 PM. According to the witness her father used to leave for his work at 10:00 AM and he used to return at 2:00 PM for taking lunch. She has stated that her elder brother used to go school while the younger brother does not go to school. The witness has denied the suggestion that her father was having a dispute with the landlord and has voluntarily explained that only on the date of incident, the State Vs. Ganga Sahay, FIR No. 169/2012, Police Station Vijay Vihar Page 6 landlord after saving her from her father, had given beatings to him (accused) and the wife of landlord made a call at 100 number. The child witness has denied the suggestion that her mother was having relations with the landlord and which was opposed by her father and therefore they have implicated him (accused) in this case. The witness has explained that her mother does not talk much with landlord. She has further denied that there were good talking terms between her mother and the landlord and has voluntarily explained that there were no such talks between her mother and the landlord. On court question, the witness has deposed that her mother used to pay the rent of the house. On further court question, the witness has explained that her mother used to pay the rent to the wife of the landlord. The witness had denied the suggestion that she had received the injury on her private part due fall and has voluntarily explained that her father had committed galat kaam upon her and there was bleeding from her private part. She has further stated that her father used to consume alcohol daily in the night and also used to give beatings to her mother and used to demand money for alcohol. The witness has voluntarily explained that her father also used to consume liquor even during the day and gave beatings to them. She has denied the suggestion that she has deposed falsely on the asking of her mother and has voluntarily explained that her mother had gone to her native village for the last 15 days.
State Vs. Ganga Sahay, FIR No. 169/2012, Police Station Vijay Vihar Page 7 (12) PW14 Nazima Khan is the representative of the NGO Navstrishti. She has deposed that she is involved into welfare and development of women and child. According to the witness on 17.05.2012 she received a call from SI Rekha from Police Station Vijay Vihar and pursuant to the said call, she reached BSA Hospital where she found child namely 'P' aged about 9 years admitted there. She has further deposed that her mother was also present in the hospital and that she first talked to the mother Anjula and thereafter spoke to the child 'P'. According to her, at that time the child was crying bitterly because she was great pain on account of heavy bleeding and shock and that she enquired from the child as to what had happened and she informed that her mother had gone out for work and her father who is a rickshaw puller came back in a state of intoxication and while she was sleeping in the room and did galat kaam/rape with her and thereafter, slept in the same room and pushed her out of the room when the landlord saved her. According to the witness the child also informed that thereafter the landlord send somebody and inform her mother and also informed the police who brought her to the hospital. She has further deposed that she remained with the child for sometime and duly counselled her. She has further deposed that the child was thereafter given medical treatment which was earlier delayed. According to her, the child was given stitches she remained admitted in the hospital for about 5 days State Vs. Ganga Sahay, FIR No. 169/2012, Police Station Vijay Vihar Page 8 and while the child was admitted in the hospital and was under
treatment the Investigating Officer recorded her statement. (13) In her crossexamination by Ld. Counsel for the accused, she deposed that she had received the information at about 66.30 p.m. and when she went to the hospital the only family member of the child victim present there was her mother Anjula and that she remained in the hospital for about 3 to 4 hours. She has further deposed that she did not go to the hospital again to meet the child while she was admitted there for five days. She has denied that the child 'P' did not make any statement to the police or that her statement was recorded of her own.
(14) PW15 Surender Singh deposed that he is the original resident of this village and he is residing at 925, Pooth Kalan there since his birth where he is residing with his parents, his wife and children and that C8, Mange Ram Park also belonged to him where he has made some rooms on the ground floor and that he has kept cattle on the ground floor which he is maintaining and remains there during the day. He has further deposed that he has given 11 rooms on rent and Ganga Sahay accused whom he has correctly identified in the Court was his tenant and was residing in one room with his family comprising of his wife and children. He has further deposed that on 17.05.2012 at about 2/2.30 p.m. while he was putting foddar for the cattle he suddenly heard the scream of a small child from the State Vs. Ganga Sahay, FIR No. 169/2012, Police Station Vijay Vihar Page 9 room of Ganga Sahay and when he saw towards the direction suddenly the scream stopped. He has further deposed that there were other tenants in the vicinity and they also told him that they had heard the screams from the room of Ganga Sahay and suspected that something had happened and therefore he went towards the room.
According to the witness the room was shut but there was a gap in the door and one could see inside, from where he saw Ganga Sahay and the child 'P' who was his (accused's) daughter in a half naked condition and the child 'P' was screaming and crying. On this he pushed the door and opened it and found her (child) bleeding from her private parts. The witness has deposed that he asked the child what had happened and initially she (child) kept on crying and did not tell him nothing but after sometime she told him that her father had done a galat kaam with her on which he immediately called up the police on 100 No. from his mobile No. 9312596388 and till the police came to the spot he along with the other public persons held Ganga Sahay in one room (Ganga Sahay Ko Kamare Me Rok Diya). He has further deposed that large numbers of public gathered at the spot and while he was trying to contact the mother of the child, Ganga Sahay taking advantage of the crowd slipped away from the room. He has further deposed that he sent another child to fetch the wife of Ganga Sahay namely Anjula when she came the child (victim) told her what had happened. In the meanwhile the police State Vs. Ganga Sahay, FIR No. 169/2012, Police Station Vijay Vihar Page 10 also came and took the child and her mother with them for her treatment and in the evening the police again came to the spot and on his pointing out prepared the site plan of the room which is already Ex. PW13/D and recorded his statement thereafter. (15) In his crossexamination by Ld. Counsel for the accused this witness denied that he was having illicit relations with the wife of Ganga Sahay to which he was objecting. He has denied that he has falsely implicated Ganga Sahay because of this reason. (16) PW16 Anjula deposed that she is residing at the aforementioned address of A5, Mange Ram Park since last three months after the incident and prior to that she is residing in the house of Surender at H. No. C8, Mange Ram Park, Pooth Kalan, Delhi where she resided with her husband Ganga Sahay (accused) and five children. She has explained that her eldest child is a daughter and she is married in Bihar and her second child is a son, the prosecutrix 'P' is her third child she is followed by her daughter Aarti and the youngest is the son aged about five years. She has further deposed that her daughter 'P' is aged about 9 years and she is doing a private job and working in a factory and she normally leave her house for duty at about 9 a.m. and returns back at 5.30 p.m. and that her husband Ganga Sahay is a rickshaw puller having taken a rickshaw on rent which he plys. She has further deposed that on 17.05.2012 she had left her house at about 9 a.m. for her duty and at about 2 3 State Vs. Ganga Sahay, FIR No. 169/2012, Police Station Vijay Vihar Page 11 p.m. exact time she does not recollect, one boy from their neighbourhood came to the factory and told her to come home immediately as her husband Ganga Sahay had done galat kaam with her daughter and when she rushed home she found a large crowd of persons standing at her house and found 'P' was crying and was bleeding from her private parts (Khoon Aa Raha Tha). She has further deposed that she asked her daughter 'P' as to what had happened (Ladki 'P' Se Pucha Kya Hua Tha?) and her daughter 'P' told her that her father had done galat kaam with her. On a Court question put to the witness as to what exactly did child 'P' tell her the witness replied that her daughter 'P' told her that she was sleeping when her father came inside the room in an intoxicated state and thereafter, he put his penis into her vagina after which she started bleeding and she was having great pain.
(17) She has further deposed that she saw that her daughter was bleeding from her private part and was in great pain and crying and that police came to the spot and took her and her daughter to the hospital where her daughter was given medical treatment and in the hospital she gave the permission for the internal examination of her child which was conducted vide MLC Ex.PW8/A and thereafter, she told the police what had happened and police recorded her statement which is already Ex.PW13/B. She has further deposed that in the evening she returned to her house with the police in search of the State Vs. Ganga Sahay, FIR No. 169/2012, Police Station Vijay Vihar Page 12 accused Ganga Sahay where they met Surender who also joined them in his search and they found Ganga Sahay at home having his food when she pointed him out to the police who apprehended him on her pointing out vide memo Ex.PW9/A. Witness has proved that the personal search of the accused was also conducted vide memo Ex.PW9/B and police thereafter interrogated Ganga Sahay and took him away and states that her daughter remained admitted in the hospital for five days. According to her, the clothes which her child/ daughter was wearing at the time of incident were also taken by the doctors and the police and identified the clothes i.e. frock and underwear the same as the clothes which the child was wearing at the time of incident. Frock is Ex. P1 and underwear is Ex. P2. (18) In her crossexamination by Ld. Counsel for the accused this witness deposed that now at this stage she does not recollect where her statement was recorded whether at home or in the hospital. She has voluntarily explained that it was recorded on the same day. She has further deposed that the accused Ganga Sahay was apprehended from their house i.e. C8, Mange Ram Park, in the evening and has admitted that he did not run away on seeing the police. She has admitted that she had never seen Ganga Sahay molesting any of the child previously and has voluntarily added that had she known of it she would have stopped the same. She has denied that she was having illicit relations with the landlord Surinder State Vs. Ganga Sahay, FIR No. 169/2012, Police Station Vijay Vihar Page 13 Singh which was being objected to by Ganga Sahay. She has denied that it was the landlord Surinder who had molested her daughter and had committed rape on her daughter and Ganga Sahay had been falsely implicated by her in connivance with landlord Surinder Singh. She has denied that Ganga Sahay does not consume any alcohol and even on the date of the incident he was away at his work during the day and came back only in the evening to have dinner when he was apprehended and has voluntarily explained that he had been caught by the public persons during the day but had run away and it was in the evening the police could catch him. She has denied that Ganga Sahay had been falsely implicated by her in connivance with the landlord Surinder Singh.
Medical Evidence:
(19) PW7 Dr. Jagat Singh Martolia has deposed that on 28.5.2012 the patient/ prosecutrix 'P' D/o Ganga Sahay had been produced before the Board of the Baba Saheb Ambedkar Hospital for conducting her ossification test and after examination Dr. Rajiv Ranjan, HOD, Radiology; Dr. Jitender Singh, HOD, Orthopedics, Dr. Vijay Dhankar, HOD Forensic Medicine and Dr. Kunwar Sanjay Kumar, Dental Surgeon submitted the Bone Age report which was forwarded by him vide letter dated 7.6.2012. He has further deposed that according to the said report the estimated age of the prosecutrix State Vs. Ganga Sahay, FIR No. 169/2012, Police Station Vijay Vihar Page 14 'P' was more than 10 years but less than 12 years and the Bone Age report of the prosecutrix is Ex.PW7/A which bear the signatures of Dr. Rajiv Ranjan at point A, signatures of Dr. Jitender Singh at point B, signatures of Dr. Vijay Dhankar at point C and that of Dr. Kunwar Sanjay Kumar at point D which signatures he duly identified being the Deputy Medical Superintendent of the Hospital and having seen these doctors writing and signing during official course and the forwarding letter dated 7.6.2012 is Ex.PW7/B. This witness has not been crossexamined by Ld. Counsel for the accused and hence, his testimony has remained unassailed.
(20) PW8 Dr. Pratibha Agrawal deposed that she has been deputed by the Medical Superintendent to depose on behalf of the Dr. Deepika and Dr. Dolly Bansal both of them being on long leave unable to come to the Court. She has further deposed that on 17.5.2012 the prosecutrix 'P' aged about 9 years was brought to the hospital by her mother Anjula at 4:15 PM with an alleged history of sexual assault and as per the history provided the father was alcoholic and after examination of the patient the MLC Ex.PW8/A was prepared by Dr. Deepika bearing her signatures at various points mark A which she identify having seen her while signing and writing during discharge of her official duty. She has further deposed that a total number of 18 samples/ exhibits were duly collected which endorsement is present at point bracketed B details State Vs. Ganga Sahay, FIR No. 169/2012, Police Station Vijay Vihar Page 15 of which are as under:
1. Cloth dusting and undergarments
2. Body fluid collection
3. Nail scrapping
4. Debris collection
5. In between fingers
6. Breast Swab
7. Combing of pubic hair
8. Clipping of pubic hair (pubic hair absent)
9. Matted pubic hair
10.Vaginal secretion
11.Culture
12.Washing from vagina
13.Rectal washings
14.Oral washings
15.Blood collection of victim
16.Urine and oxalate blood vial (21) According to this witness, the observations made by Dr. Deepika on the MLC are at point bracketed C according to which on local examination there were no pubic hair, hymen was torn and there was no evidence of perianal injury (around the anus) and sphincters appear normal and there was clotted blood present on perineum, small abrasion present on posterior vaginal wall, State Vs. Ganga Sahay, FIR No. 169/2012, Police Station Vijay Vihar Page 16 active bleeding was not present. A question was put by the court as to what does clotted blood on perineum and abrasion on posterior vaginal wall indicate, to which the witness replied since the child was very small around 9 years of age and had not yet achieved menarche hence the clotted blood on perineum and abrasion on posterior vaginal wall are indicative of a forced sexual assault on the child as a result of which there were abrasions and bleedings on the vaginal wall on account of which the blood had clotted on perineum region (area around the vagina). Another court question was put to the witness to the effect that the MLC reflected that the child was experiencing slight discomfort in walking and what it indicated, to which the witness replied that discomfort in walking could be because of pain the child experienced in the lower abdomen and the perineum region.
(22) This witness has further deposed that on 18.5.2011 Investigating Officer SI Rekha moved an application to the CMO BSA Hospital for recording the statement of the prosecutrix which application is Ex.PW8/B and that the said application was duly allowed by Dr. Dolly Bansal, SR Gynae vide her endorsement and signatures at point B and she identify her signatures and handwriting having seen having her while signing and writing during officer course.
State Vs. Ganga Sahay, FIR No. 169/2012, Police Station Vijay Vihar Page 17 (23) During crossexamination by Ld. Counsel for the accused, this witness admitted that neither the child nor her mother gave any history to Dr. Deepika. She has admitted that the statement of the prosecutrix was not recorded in her presence. She has denied that she has never worked with Dr. Dolly Bansal and Dr. Deepika or that she is not acquainted with their handwriting and signatures. She has denied that she was deposing falsely and has voluntarily explained that she was deposing on the basis of the official record. (24) PW11 Dr. Vijay Dhankar deposed that on 28.5.2012 the prosecutrix 'P' D/o Ganga Sahay had been produced before the Medical Board of Dr. Baba Saheb Ambedkar Hospital comprising of himself, Dr. Rajiv Ranjan, HOD, Radiology; Dr. Jitender Singh, HOD, Orthopedics and Dr. Kunwar Sanjay Kumar, Dental Surgeon for conducting her ossification test and after examination the Medical Board concluded that the estimated age of the prosecutrix 'P' is more than 10 years but less than 12 years and the Bone Age report of the prosecutrix is Ex.PW7/A which bears his signatures at point C, the signatures of Dr. Rajiv Ranjan at point A, signatures of Dr. Jitender Singh at point B and that of Dr. Kunwar Sanjay Kumar at point D which signatures he has duly identified having seen them writing and signing during official course. This witness was not crossexamined by Ld. Counsel for the accused and hence, his testimony remained unassailed.
State Vs. Ganga Sahay, FIR No. 169/2012, Police Station Vijay Vihar Page 18 (25) PW19 Dr. Rajeev Ranjan has deposed that on 28.05.2012 the prosecutrix 'P' D/o Ganga Sahay had been produced before the Medical Board of Dr. Baba Saheb Ambedkar Hospital comprising of himself, Dr. Vijay Dhanker, HOD, Forensic Medicine, Dr. Jitender Singh, HOD, Orthopedics and Dr. Kunwar Sanjay Kumar, Dental Surgeon for conducing her ossification test and after examination the Medical Board concluded that the estimated age of the prosecutrix 'P' was more than 10 years but less than 12 years and the bone age report of the prosecutrix Ex. PW7A. This witness was not crossexamined by Ld. Counsel for the accused and hence, his testimony remained unassailed.
(26) PW20 Dr. Jitender Singh deposed that on 28.05.2012 the prosecutrix 'P' D/o Ganga Sahay had been produced before the Medical Board of Dr. Baba Saheb Ambedkar Hospital comprising of himself, Dr. Rajeev Ranjan Radiology, Dr. Vijay Dhanker, HOD, Forensic Medicine and Dr. Kunwar Sanjay Kumar, Dental Surgeon for conducing her ossification test and after examination the Medical Board concluded that the estimated age of the prosecutrix 'P' was more than 10 years but less than 12 years and the bone age report of the prosecutrix Ex.PW7A. This witness was not crossexamined by Ld. Counsel for the accused and hence, his testimony remained unassailed.
State Vs. Ganga Sahay, FIR No. 169/2012, Police Station Vijay Vihar Page 19 (27) PW21 Dr. Kunwar Sanjay Kumar deposed that on 28.05.2012 the prosecutrix 'P' D/o Ganga Sahay had been produced before the Medical Board of Dr. Baba Saheb Ambedkar Hospital comprising of himself, Dr. Rajeev Ranjan, HOD, Radiology, Dr. Vijay Dhanker, HOD, Forensic Medicine, Dr. Jitender Singh, HOD, Orthopedics for conducing her ossification test and after examination the Medical Board concluded that the estimated age of the prosecutrix 'P' was more than 10 years but less than 12 years and the bone age report of the prosecutrix Ex. PW7A. This witness was not crossexamined by Ld. Counsel for the accused and hence, his testimony remained unassailed.
Forensic Evidence:
(28) PW18 A.K. Shrivastava has deposed that on 23.05.2012 two sealed parcels sealed with the seal of SD were received in the office of FSL, Rohini for DNA examination and after conducting the DNA examination on the various exhibits he gave his detailed findings vide his report Ex.PW18/A. According to him, the DNA examination was conducted by using the STR analysis technique and the data was analyzed by using GeneMapper IDX Software. He has proved his conclusion that the DNA profiling (STR Analysis) performed on the exhibits provided was sufficient to conclude that DNA profile on the exhibit 111 and 112 (Microslides of vaginal State Vs. Ganga Sahay, FIR No. 169/2012, Police Station Vijay Vihar Page 20 secretion of the prosecution), 113 (cotton wool swab) was similar with DNA profile of source of exhibits 3a (blood sample of accused). This witness was not crossexamined by Ld. Counsel for the accused and hence, his testimony remained unassailed.
Police Witnesses:
(29) PW1 HC Hukminder has tendered his examination in chief by way of affidavit which is Ex.PW1/1 and has deposed that he was working as MHC(M) in police station Vijay Vihar, Outer district, Delhi and on 17.05.12 SI Rekha deposited exhibits of above said case vide Mud No. 306/12 of the register No. 19 of Malkhana copy of which is Ex.PW1/A and that on 23.05.2012 as per directions of ASI Satyaveer Singh of P.S. Vijay Vihaar, the exhibits of the above said case was handed over to Ct. Naresh Kumar with sample seal and other documents for depositing in FSL Rohini vide RC No. 91/21/12 copy of which is Ex.PW1/B from Malkhana of P.S. Vijay Vihar and the copy of RC and case receipt Ex.PW1/C was handed over to him by Ct. Naresh and that the exhibits were safe with seal intact till the exhibits remained in his custody. This witness was not crossexamined by Ld. Counsel for the accused and hence, his testimony remained unassailed.
(30) PW2 Ct. Chunni Lal has tendered his examination in chief by way of affidavit which is Ex.PW2/1 and deposed that he has State Vs. Ganga Sahay, FIR No. 169/2012, Police Station Vijay Vihar Page 21 been working as constable in Police Station Vijay Vihar, Outer District Delhi. According to him on 17.05.2012 he reached at Mange Ram Park near Prahladpur Road, Delhi on the directions of SI Rekha where he along with said SI and accused Ganga Sahay reached at BSA Hospital where medical examination of accused Ganga Sahay was conducted vide MLC No. A1991/12 and thereafter one sealed pullanda with sample seal was handed over to Investigating Officer by the doctor of BSA Hospital containing scalp hair plucked cut, pubic hair plucked cut, blood sample clothed EDTA blood in gauge etc. and the same was seized through seizure memo which is Ex.PW2/A by SI Rekha. This witness was not crossexamined by Ld. Counsel for the accused and hence, his testimony remained unassailed.
(31) PW3 Ct Naresh Kumar has tendered his examination in chief by way of affidavit which is Ex.PW3/1 and has deposed that on 23.05.2012 as per directions of ASI Satyavir Singh of P.S. Vijay Vihar the exhibits of above said case was handed over to him by the MHC (M) CP of P.S. Vijay Vihar and the same was deposited in FSL Rohini with sample seal and other documents vide RC No. 91/21/12 and the copy of RC and case receipt handed over to MHC (M) CP and that the case property was safe with seal intact till the exhibits remained in his custody. This witness was not crossexamined by Ld. Counsel for the accused and hence, his testimony remained State Vs. Ganga Sahay, FIR No. 169/2012, Police Station Vijay Vihar Page 22 unassailed.
(32) PW4 W/Ct Sonia has tendered her examination in chief by way of affidavit which is Ex.PW4/1 and has deposed that she has been working as W/Ct. in P.S. Vijay Vihar, Outer District, Delhi. According to the witness on 17.05.2012 she alongwith SI Rekha reached at C8, Mange Ram Park, Delhi on the directions of senior officers in DD Entry 63 B for enquiry and where found ASI Brij Mohan, Ct. Vikramjeet and some public persons alongwith victim 'P' d/o Ganga Sahay with her mother namely Manjula and on the enquiry it is found that father of victim Ganga Sahay raped her. She has further deposed that she along with said SI, victim and mother of victim reached at BSA hospital where medical examination of the victim conducted vide MLC No. 132/12 . She has further deposed that after that one sealed pullanda with sample seal handed over to Investigating Officer by the Dr. of BSA Hospital and after that one rukka in written handed over to her by said SI for registration of case at P.S. Vijay Vihar and that after registration of the case original rukka and FIR computer company handed over to said SI. She was not crossexamined by the counsel and the testimony remained unassailed.
(33) PW5 Ct. Shanker has tendered his examination in chief by way of affidavit which is Ex.PW5/1 and has deposed that he has been working as Ct. in P.S. Vijay Vihar, Outer District, Delhi. State Vs. Ganga Sahay, FIR No. 169/2012, Police Station Vijay Vihar Page 23 According to the witness on 17.05.2012 he was deployed as DD writer in police station from 8 a.m. to 4 p.m. and DD No. 63 B copy of which is Ex.PW5/A was lodged by him and was handed over to ASI Brij Mohan, emergency officer for necessary action on the direction of duty officer HC Chander Mohan. This witness was not crossexamined by Ld. Counsel for the accused and hence, his testimony remained unassailed.
(34) PW6 HC Chander Mohan has tendered his examination in chief by way of affidavit which is Ex.PW6/1 and has deposed that on 17.05.2012 he was deployed as duty officer in police station from 4 p.m. to 00:00 hours and at about 6.20 p.m. a rukka was received from WSI Rekha through W/Ct.Sonia for registration of FIR and that he lodged a DD No. 32 A in this regard and got the FIR No. 169/12 u/s 376 IPC registered through computer and had given back original rukka and copy of FIR to W/Ct. Sonia for handing it over to WSI Rekha. Copy of FIR is Ex.PW6/A (Original seen and returned) and endorsement on rukka which is Ex.PW6/B. This witness was not crossexamined by Ld. Counsel for the accused and hence, his testimony remained unassailed.
(35) PW9 Ct. Vikramjit Singh deposed that on 17.5.2012 he was posted at Police Station Vijay Vihar and on that day he was on emergency duty from 8:00 AM to 8:00 PM and on that day at about 2:45 PM they received an emergency call vide DD No. 63B already State Vs. Ganga Sahay, FIR No. 169/2012, Police Station Vijay Vihar Page 24 Ex.PW5/A regarding rape by a father on a child at 63B, Mange Ram Park. This witness has further deposed that he along with SI Brij Mohan Singh reached at the aforesaid address where they met the child and the mother and large number of public persons were standing and on inquiry from them they were told that Ganga Sahay the father of the child (i.e. accused who has been correctly identified by the witness) had committed rape upon her. According to this witness, when they saw the child, he found her bleeding from her private parts (larki ke niche wale hisse se khoon aa raha tha) and hence they immediately called for a lady officer on which WCt. Sonia came to the spot. According to this witness , on the directions of ASI Brij Mohan the child was immediately rushed to Baba Sahib Ambedkar Hospital by W/Ct. Sonia where her medical examination was got conducted and the mother of the child also accompanied her to the hospital and he remained at the spot along with ASI Brij Mohan and thereafter they made efforts to trace out the accused Ganga Sahay but he could not find him at that time. He has further deposed that thereafter they returned to the Police Station and in the evening he along with ASI Brij Mohan reached Baba Sahib Ambedkar Hospital where the Investigating Officer collected medical documents of the child/ prosecutrix after which they returned to the Police Station. He has further deposed that they apprehended the accused Ganga Sahay at about 7:00-7:30 PM after which the State Vs. Ganga Sahay, FIR No. 169/2012, Police Station Vijay Vihar Page 25 Investigating Officer prepared his arrest memo which is Ex.PW9/A and the personal search memo of the accused Ganga Sahay is Ex.PW9/B and his disclosure statement was also recorded by the Investigating Officer which is Ex.PW9/C. (36) On questions put by Ld. Addl. PP for the State this witness has admitted that WSI Rekha recorded his statement on 17.5.2012. He has stated that he went to the spot C8, Mange Ram Park, Pooth Kalan along with ASI Brij Mohan after receiving the DD No.63B and on the directions of SI Rekha he along with ASI Brij Mohan remained at the spot C8, Mange Ram Park while SI Rekha went to hospital along with the prosecutrix 'P' and her mother Anjula. He has further stated that at the instance of secret informer they reached Prahladpur Road from where the accused Ganga Sahay was arrested and has admitted that the DD No. was 63 B and the spot was C8, Mange Ram Park and has voluntarily explained that due to confusion he wrongly mentioned the address in his examination in chief.
(37) In his crossexamination by Ld. Counsel for the accused this witness deposed that on receipt of DD No. 63B they left the Police Station at 2:45 PM and did not make any separate Rawangi. He has deposed that they reached the spot on the motorcycle of ASI Brij Mohan within 1015 minutes and remained there for about half an hour. He has stated that the disclosure statement of the accused State Vs. Ganga Sahay, FIR No. 169/2012, Police Station Vijay Vihar Page 26 was recorded in the Police Station but has denied the suggestion that the accused did not make any disclosure statement or that the Investigating Officer had written the disclosure statement of the accused of his own. He has further deposed that he does not remember the exact time of his reaching to the Hospital but has denied that he is unable to tell the exact time of his reaching hospital as he was not involved in the investigations of this case. He has denied that he had not visited the spot due to which reason he was unable to mention the correct details of the address. He has denied that he had not joined the investigations with ASI Brij Mohan or that he has signed the various documents in the Police Station on the asking of the IO. He has denied that he is deposing falsely at the instance of the senior officers.
(38) PW12 ASI Satbir Singh deposed that on 22.5.2012 he was posted as ASI at Police Station Vijay Vihar and on that day the investigations of this case was marked to him by the order of the SHO concerned after which he examined the case file and thereafter he along with WCt. Rajbala reached C8, Mange Ram Park, Pooth Kalan and took the child prosecutrix and her mother and produced them before the Ld. MM and moved an application for recording the statement of the child prosecutrix under Section 164 Cr.P.C. before the Ld. MM which application is already Ex.PX1. This witness has further deposed that the application was marked to Ld. Link MM Ms. State Vs. Ganga Sahay, FIR No. 169/2012, Police Station Vijay Vihar Page 27 Meenu Kaushik who recorded the statement of the child prosecutrix vide proceedings already Ex.PX3 and the statement of the child prosecutrix is already Ex.PW10/A. Thereafter he moved an application before the Ld. MM for obtaining the copy of the proceedings under Section 164 Cr.P.C. which application is already Ex.PX4 and pursuant to the said application he received the copy of the proceedings. This witness has further deposed that on 23.5.2012 he sent the exhibits of this case to FSL, Rohini through Ct. Naresh and recorded the statement of Ct. Naresh and HC Hukminder (MHCM) and thereafter the case file were handed over to SI Bineet Pandey on the directions of the SHO for producing the child prosecutrix before the Child Welfare Committee. According to this witness, on 24.5.2012 on the directions of the SHO, HC Virender Singh was deputed to get the ossification test of the child prosecutrix conducted who accordingly reached at BSA Hospital and got constituted the Medical Board of Doctors for conducting the ossification test of the child prosecutrix and on 28.5.2012 HC Virender Singh took the child prosecutrix along with her mother to BSA Hospital and got conducted the ossification test of the child prosecutrix. He has further deposed that on 1.6.2012 the investigations were marked to WSI Rekha.
(39) In his crossexamination by Ld. Counsel for the accused, this witness deposed that the mother of the child prosecutrix had State Vs. Ganga Sahay, FIR No. 169/2012, Police Station Vijay Vihar Page 28 accompanied her to the Court when her statement under Section 164 Cr.P.C. was recorded and the child was brought from her house when she was taken to the Court. He has admitted that the child was counselled as per the directions of the CWC and has voluntarily explained that the child had been handed over to her mother on the directions of the CWC. He has denied that before the child was produced before the Ld. MM for recording her statement, she was tutored by him and her mother Anjula or that it is at the instance of her mother that the child made false allegations against her father/ accused Ganga Sahay. He has admitted that he did not carry out any other investigations other than what he has stated in his examination in chief. He has denied that he is deposing falsely. (40) PW13 SI Rekha has deposed that on 17.5.2012 she was posted at Police Station Vijay Vihar and on that day at about 3:00 PM he received a message from senior officers that a call regarding rape was received from C8, Mange Ram Park, Pooth Kala and pursuant to the same she along with LCt. Sonia reached the aforesaid address where they met ASI Brij Mohan and Ct. Vikramjeet who were already present there and that she also found the child prosecutrix 'P' there in a bad condition since she was bleeding from her private parts. She has further deposed that she directed ASI Brij Mohan and Ct. Vikramjeet to preserve the spot whereas she along with Ct. Sonia took the child prosecutrix 'P' and her mother namely State Vs. Ganga Sahay, FIR No. 169/2012, Police Station Vijay Vihar Page 29 Anjula to Baba Saheb Ambedkar Hospital and the prosecutrix 'P' was got admitted at the hospital and she obtained the MLC of the prosecutrix at about 4:15 PM which MLC is Ex.PW8/A and the doctor concerned handed over her the samples of the prosecutrix which she seized vide seizure memo Ex.PW13/A. In between she sent message to Ms. Nazma the representative of NGO Nav Shristi and that she recorded the statement of Anjula mother of the prosecutrix which is Ex.PW13/B and thereafter she prepared the rukka which is Ex.PW13/C and at about 6:00 PM she sent Ct. Sonia to Police Station along with the rukka for registration of the case and thereafter she reached the spot where she met ASI Brij Mohan and Ct. Vikramjeet and that she examined the spot of incident but nothing incriminating was found there. She has further deposed that she also met the landlord Surender @ Sunder who informed her that he had made the PCR call and Surender @ Sunder informed her that he had rented out one room of plot No. C8, Mange Ram Park to Ganga Sahay and at about 12:30 Noon while he was present at his plot, he heard the cries of the child on which he opened the door of the room of Ganga Sahay and saw that Ganga Sahay and the child were half naked. She has further deposed that Surender @ Sunder also informed her that a large number of the public persons had gathered there and in the meanwhile wife of Ganga Sahay, who was working in a factory, also reached the spot and thereafter he made a call to State Vs. Ganga Sahay, FIR No. 169/2012, Police Station Vijay Vihar Page 30 PCR at 100 number and that he further informed her that Ganga Sahay escaped from the spot taking advantage of the crowd and that she recorded the statement of Surender @ Sunder and thereafter at the instance of Surender @ Sunder she prepared the site plan which is Ex.PW13/D and in the meanwhile, WCt. Sonia came to the spot and handed over to her the copy of FIR and original rukka since the investigations were marked to her. She has further deposed that Ct. Chunni Lal from Police Station Vijay Vihar also reached the spot and one secret informer met her at the spot who informed her that the accused Ganga Sahay was present at Prahladpur Road and Smt. Anjula also returned from the hospital and thereafter she along with Smt. Anjula, Ct. Chunni Lal, Ct. Vikramjeet Singh and the secret informer reached Prahladpur Road where the secret informer and Smt. Anjula pointed out towards the accused Ganga Sahay. She has further deposed that Ct. Chunni Lal and Ct. Vikramjeet Singh apprehended the accused Ganga Sahay and that she interrogated the accused Ganga Sahay after which he was arrested vide memo Ex.PW9/A and his personal search was conducted vide memo Ex.PW9/B and the accused Ganga Sahay made his disclosure statement which is Ex.PW9/C. She has further deposed that the accused Ganga Sahay was taken to BSA Hospital for his medical examination. While she was still present at BSA Hospital, Ms. Nazma the representative of NGO Nav Shristi met her in the hospital State Vs. Ganga Sahay, FIR No. 169/2012, Police Station Vijay Vihar Page 31 and that she counselled the child prosecutrix and her mother Anjula and she collected the MLC of the accused which is Ex.PX5. She has further deposed that the doctor concerned handed over one pullanda duly sealed with the seal of SD to Ct. Chuuni Lal who in turn handed over the said pullanda to her which she seized vide Ex.PW2/A and thereafter they all returned to Police Station Vijay Vihar and she deposited the case property with the MHCM and that since there was no lockup in Police Station Vijay Vihar therefore the accused was lodged in lockup at Police Station South Rohini through Ct. Brijesh and that she recorded the statements of the witnesses under Section 161 Cr.P.C.
(41) This witness has further deposed that on 18.5.2012 she took the accused Ganga Sahay from the Lockup and at about 12:00
- 12:30 noon the accused was produced before the doctors at BSA Hospital for evaluation regarding capability of sexual intercourse and that after examination of the accused, she obtained the MLC of the accused which is Ex.PX6 and that the accused Ganga Sahay was thereafter produced before the Ld. MM and he was sent to judicial custody. She has further deposed that on the same day she moved an application Ex.PW8/A for recording the statement of the prosecutrix and thereafter with the permission of Dr. Dolly Bansal, she recorded the statement of the child prosecutrix 'P'. She has also deposed that thereafter from 21.5.2012 to 31.5.2012 she went to attend a course at State Vs. Ganga Sahay, FIR No. 169/2012, Police Station Vijay Vihar Page 32 Rajender Nagar Training Center. She has further deposed that on 1.6.2012 she again received the case file and she came to know that the exhibits were already sent to the FSL Rohini and the statement of the prosecutrix under Section 164 Cr.P.C. was already recorded and that she also came to know that the child prosecutrix was already produced before the Child Welfare Committee and her ossification test had already been conducted and on completion of investigations, she prepared the charge sheet and filed the same through the SHO. She has correctly identified the accused Ganga Sahay in the Court. (42) In her crossexamination by Ld. Counsel for the accused, this witness deposed that she had received the message from Duty Officer and at that time she was at Police Station Mangol Puri and that she had made a ravangi. She has again said that she did not make any departure entry/ ravangi while leaving Police Station Mangol Puri and that she reached the spot at about 3.153.30PM and Lady Ct. Sonia was with her. She has further deposed that at the time she reached the spot the condition of the child was very bad. She has voluntarily stated that she was bleeding. According to this witness, they could not find any blood spot in the room and the child had pointed out the place where the incident had occurred. She has further deposed that she did not call the crime team to get the spot photographed and that she did not lift any exhibits from the spot and that she did not seize any cloth from the spot. She has further State Vs. Ganga Sahay, FIR No. 169/2012, Police Station Vijay Vihar Page 33 deposed that when she reached the spot accused was not present there and at the time when she first saw the child she was wearing her undergarments and states that she immediately took the child to the hospital and did not seize the undergarments herself. According to her, when she reached the spot there was a large crowd of public persons and when she reached back after the treatment was given to the child, she only met Surender @ Sunder the landlord and could not meet any other public person. She has further deposed that when she apprehended Ganga Sahay she did not note whether he was in drunken condition or not. She has further deposed that she did not conduct any breath test of the accused Ganga Sahay and that she did not find any liquor bottle or pouches in the room of the accused where the incident had taken place. She has denied that the child prosecutrix did not tell her that it was his father who had done the galat kaam with her. She has denied that the present case was registered only the basis of affirmation made by Anjulathe mother of the child. She has denied that the public persons had told her that Anjula was having illegitimate relations with the landlord which was being objected to by the accused and hence there was a quarrel between them on daily basis and has voluntarily added that nobody had stated this fact. She has denied that she was told by the public and also by the child that she had fallen down and received injuries but it was only on the insistence of the mother of the child State Vs. Ganga Sahay, FIR No. 169/2012, Police Station Vijay Vihar Page 34 prosecutrix and the landlord Surender @ Sunder that the present case was registered. She has denied that it is for this reason that she initially did not deliberately cite Surender @ Sunder as a witness in the present case. She has denied that the accused Ganga Sahay did not try to run away when they apprehended him and has voluntarily explained that Constables had overpowered him. She has denied that she is deposing falsely or that she is falsely implicating the accused in the present case.
(43) PW17 ASI Brij Mohan has deposed that on 17.05.2012 he was posted at police station Vijay Vihar and on that day he was on emergency duty from 8 a.m. To 8 p.m. and at about 2.45 day he received DD No. 63 B which is Ex.PW5/A on receipt of which he along with Ct. Vikramjit went to C8, Mange Ram Park, Pooth Kalan where they came to know that one child 'P' aged about 9 years had been raped by her father Ganga Sahay and there was a large crowd about 5060 persons. He has further deposed that they were told that Ganga Sahay had been apprehended by public but he had slipped away and they found the child 'P' was crying and was bleeding from her vagina and on seeing the situation he immediately made a call to the police station and asked them to sent some lady officer to the spot and after sometime lady Ct. Sonia came to the spot and seeing that the condition of the child was very bad, she immediately shifted the child to the BSA hospital, while he along with Ct. Vikramjit State Vs. Ganga Sahay, FIR No. 169/2012, Police Station Vijay Vihar Page 35 remained at the spot in order to preserve the scene of crime that is the room where the incident had allegedly taken place and till the time they remained at the spot they did not permit anybody to enter the room. He has further deposed that at about 3.15 3.30 p.m. SI Rekha came to the spot and relieved him.
(44) In his crossexamination by Ld. Counsel for the accused this witness deposed that he did not interrogate any public person and it was the landlord Surender who informed him that the father of the child had done galat kaam/rape with her and that he did not record the statement of any person including the landlord Surender nor he had prepared any document at the spot . He has further deposed that he did not make any inquiries from the child and has voluntarily explained that she was not in a position to make any statement as her condition was very bad.
STATEMENT OF ACCUSED & DEFENCE EVIDENCE:
(45) After completing the prosecution evidence, statement of accused was recorded under Section 313 Code of Criminal Procedure in which all the incriminating evidence / material was put to him which he has denied. However, he has not examined any witness in defence. According to the accused on the day of incident he was under the influence of alcohol and hence he does not remember what had happened. He has denied all the allegations against him.
State Vs. Ganga Sahay, FIR No. 169/2012, Police Station Vijay Vihar Page 36 FINDINGS:
(46) I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Amicus Curiae for the accused. I have also considered the testimonies of various witnesses examined by the prosecution and also the written memorandum of arguments filed on behalf of the accused. My findings are as under:
Identity of the Accused:
(47) In so far as the identity of the accused is concerned, the same is not disputed. He has been specifically named in the FIR and was apprehended soon after the incident. He is father of the victim and has been duly identified by the victim / child prosecutrix 'P', her mother Anjula and also the landlord namely Surender. This being the background, I hold that the identity of the accused Ganga Sahay stands established.
Age of the Prosecutrix 'P':
(48) The case of the prosecution is that the child prosecutrix is aged about 9 years who comes from a very extremely poor strata of society. The exact date of birth of the child prosecutrix is not known.
Her ossification/ bone Xray report Ex.PW7/A which has been duly proved by PW7 Dr. Jagat Singh, PW11 Dr. Vijay Dhankar, PW20 Dr. Jitender Singh and PW21 Dr. Kunwar Sanjay Kumar, and which is not controverted on behalf of the accused, establishes that at the State Vs. Ganga Sahay, FIR No. 169/2012, Police Station Vijay Vihar Page 37 time of the incident the child was aged more than 10 years but less than 12 years proving that she was a child less than 12 years of age. Medical Evidence:
(49) The MLC of the prosecutrix 'P' which is Ex.PW8/A has been duly proved by Dr. Pratibha Agarwal (PW8) who has deposed that the prosecutrix 'P' was brought to the hospital on 17.5.2012 at about 4:15 PM by her mother Anjula with alleged history of sexual assault and as per the history provided to the doctor the father of the patient was alcoholic. It is observed on the MLC that the mother of the child did not give any history to the doctor and it was noticed by the doctor that the child was having slight discomfort on walking and was giving a vacant look. She was observed to be poorly clothed and nutritionally lacking (poor nutritions). Dr. Pratibha Agarwal (PW8) has duly proved the observations made by Dr. Deepika on the MLC proving that hymen was torn, there was no evidence of perianal injury (around the anus), sphincters appear normal, clotted blood was present on perineum, small abrasion present on posterior vaginal wall, active bleeding was not present.
On specific court question the witness Dr. Pratibha Agarwal has explained that the child was very small around 9 years of age and had not yet achieved menarche hence the clotted blood on State Vs. Ganga Sahay, FIR No. 169/2012, Police Station Vijay Vihar Page 38 perineum and abrasion on posterior vaginal wall were indicative of a forced sexual assault on the child as a result of which there were abrasions and bleedings on the vaginal wall on account of which the blood had clotted on perineum region (around the vagina). On further court question the doctor has explained that the MLC shows that the child was having discomfort in walking could which be because of pain the child experienced in the lower abdomen and the perineum region. This being so, I hold that the medical record of the child victim is compatible to the allegations of sexual assault having committed upon her.
The Accused is the Natural Father of the Prosecutrix 'P':
(50) The case of the prosecution is that the accused Ganga Sahay is the natural father of the child prosecutrix 'P' and this is an aspect which has not been disputed by the accused. Even otherwise the mother of the prosecutrix namely Anjula who has been examined as PW16 has proved that this aspect. The present case pertains to allegations of incest rape upon the child by the natural father in the state of intoxication which aspect stands established and proved.
Forensic Evidence:
(51) The case of the prosecution is that immediately after the incident during the medical examination of the child victim, her State Vs. Ganga Sahay, FIR No. 169/2012, Police Station Vijay Vihar Page 39 vaginal swab was taken and was sent for examination. Sh. A. K. Shrivastava (PW18) has proved the DNA Finger Printing Report Ex.PW18/A showing that the DNA examination was conducted by using the STR Analysis Technique and the data was analyzed by using GeneMapper IDX Software which proves that the DNA profiling (STR Analysis) performed on the exhibits provided is sufficient to conclude that DNA profile on the exhibit 111 and 112 (i.e. Microslides having vaginal secretion of the child prosecutrix), 113 (cotton wool swab having vaginal secretion) is similar with DNA profile of source of Exhibits 3a (i.e. blood sample of accused), (the alleles from the source of exhibit '3a' (blood sample of accused) are accounted in the alleles from the source of exhibits '111' (Microslide) '112' (Microslide having vaginal secretion of the child prosecutrix) and '113' (cotton wool swab having vaginal secretion of the child prosecutrix), which conclusively connects the accused Ganga Sahay with the commission of the offence (because the semen stains present in the vaginal swab which had been taken from the prosecutrix were similar to the DNA profile of the accused).
Allegations against the Accused / Prosecutrix is a reliable witness:
(52) The case of the prosecution is that the accused Ganga Sahay is a rickshaw puller who is a habitual alcoholic. On the date of State Vs. Ganga Sahay, FIR No. 169/2012, Police Station Vijay Vihar Page 40 incident i.e. 17.5.2012 during the day when the mother of the child victim had gone to work in the factory, the child 'P' was alone in the house along with her younger siblings when the accused Ganga Sahay came back to the house in a state of intoxication and committed rape upon the child. During the incident when the child started screaming/ shouting when the landlord of the premises who was on the ground floor heard her cries and rescued her from the accused and gave beatings to the accused Ganga Sahay and also informed her mother. The mother of the child returned and saw the condition of her child and a call was also made to the police. In order to substantiate the aforesaid the prosecution has examined the child victim / prosecutrix 'P' (PW10), her mother Anjula (PW16) and the land lord Surender Singh (PW15) who have all corroborated each other on material particulars.
(53) Coming first to the testimony of the Child Prosecutrix 'P' (PW10). The child witness being around 9 years of age no oath was administered to her and was examined in question answer form in vernacular. The relevant portion of her testimony is as under:
"Ques.: Beta aap hame batayenge ki kya hua tha ? Sari baat sach sach batao.
Ans.: Papa ne galat kaam kiya tha. (Court observation: witness has started speaking very slowly and appears extremely embarrassed and ashamed).
State Vs. Ganga Sahay, FIR No. 169/2012, Police Station Vijay Vihar Page 41 Ques.: Beta aap hame poori baat batao ki kya huha tha ?
Ans. (Court Observation: Child witness has now softly started telling the counsel for the DCW what had happened which is audible to the court and to everybody in the Chamber).
Subah Papa khana kha kar chale gaye thye. Mammi bhi khana kha kar chali gaye thi aur apna lunch apne saath le gai thi. Mai apne bhaibehen ke saath kamre me so rahi thi. Mere papa ghar wapas aaye aur mere saath galat kaam karne lage. (child witness has correctly identified the accused in the court). (Pause by the witness Court question: Kya hua tha ?) Mere papa ne mere niche wale kapde utar diye thye aur jahan se wo susu karte hain wo mere ander jabardasti daal diya tha jahan se mai susu karti hoon. Jab mai roi aur chillai to unhone mera muh daba diya. Mujhe bahut dard hua aur ander se khoon nikalne laga aur mai jor - jor se chillane lagi. Mera shor sun kar kafi log ikkathe ho gaye. Jo hamare makan malik uncle hain, unhone mujhe bachaya aur makan malik aunti ne 100 number par phone kiya aur logon ne mere papa ko pakar liya. Meri chhoti behen, meri mammi ko bula layee aur jab meri mammi aaye toh mere mammi ne papa ko mara. Uske baad police aaye aur mujhe doctor ke paas le gai.
State Vs. Ganga Sahay, FIR No. 169/2012, Police Station Vijay Vihar Page 42 Court question: Kya aap bata sakte hain ki jis samay ki ye baat hai, us wakt aapke papa kis halat mae thye ?
Answer: Papa ne sarab pi rakhi thi. Again
- further stated mere papa roj sarab peetae hain aur din mai bhi peetae hain.
Ques.: Kya aap pehle bhie kabhi court aaye hain?
Ans. Haan. Mai ek baar pehle bhi court aayee thi aur judge madam ko sari baat batai thi. Madam ne bayan likha tha aur maine sign be kiya tha.
(Court Observation: witness is talking about her statement under Section 164 Cr.PC recored by Ld. MM.) At this stage the statement of child witness under Section 164 Cr.PC which is now Ex.PW10/A is shown to the witness and she has identified her signatures at Point A. (54) The child witness has been cross examined at length. In her cross examination she has confirmed that she was admitted in the hospital for about five days. She has denied the suggestion made by the accused that his wife was having illicit relations with the landlord of the premises and it is for this reason that she (prosecutrix) in connivance with the landlord has implicated him (accused). The child witness has also denied the suggestion that it is the landlord who had actual committed rape upon her and has specifically explained that her mother does not talk much to the landlord and only State Vs. Ganga Sahay, FIR No. 169/2012, Police Station Vijay Vihar Page 43 pays rent to his wife. She has also denied the suggestion that she had received internal injuries and her hymen had been torn as she had fallen down and has explained that her father had done galat kaam with her as a result of which she started bleeding from her private part. The child witness has further explained that her father was a habitual alcoholic and during the night he used to consume alcohol and used to beat them regularly and take money from her mother to purchase alcohol. She has further explained that her father even used to take alcohol during the day. She has denied that she was tutored by her mother to depose against her father (accused Ganga Sahay). Here, I may observe that the entire defence of the accused stands demolishes by the DNA Finger Printing Report which conclusively connects the accused Ganga Sahay with the offence. (55) Coming next to the testimony of the complainant / mother of the child victim namely Anjula who has been examined as PW16. She has initially did not appear in the court perhaps keeping in view her relation with the accused who is the father of the victim. However, later when she appeared in the court she supported the case of the prosecution. The relevant portion of her testimony is reproduced as under:
".... On 17.05.2012 I had left my house at about 9 a.m. for my duty. At about 2 3 p.m. exact time I do not recollect, one boy from our neighbourhood came to the State Vs. Ganga Sahay, FIR No. 169/2012, Police Station Vijay Vihar Page 44 factory and told me to come home immediately as my husband Ganga Sahay had done galat kaam with my daughter.
When I rushed home I found a large crowd of persons standing at my house and found 'P' was crying and was bleeding from her private parts(Khoon Aa Raha Tha). I asked my daughter 'P' as to what had happened(Ladki 'P' Se Pucha Kya Hua Tha?) My daughter 'P' told me that her father had done galat kaam with her.
Court question: What exactly did 'P' tell you?
Ans. My daughter 'P' told me that she was sleeping when her father came inside the room intoxicated and thereafter, he put his penis into her vagina on which she started bleeding and she was having great pain.
(Main So Rahi Thi Aur Papa Daru Pee Kar Aaya aur apni pishab wali jagah uski pishab wali jagah main daal diya and khoon nikla . Dard Ho Raha hai) I saw that my daughter was bleeding from her private part and was in great pain and crying. Police came to the spot and took me and my daughter to the hospital where my daughter was given medical treatment. In the hospital I gave my permission for internal examination of my child which is conducted vide MLC Ex.
PW8/A bearing my thumb impression at point D."
State Vs. Ganga Sahay, FIR No. 169/2012, Police Station Vijay Vihar Page 45 (56) This witness has confirmed that the accused had been apprehended and arrested in the evening when she along with came to the house and the landlord of the premises joined them in the search of accused Ganga Sahay who was at his house having his dinner. She has also corroborated the testimony of the child victim that she (child) had remained in the hospital for five days and has also confirmed that the clothes of her daughter which she was wearing at the of incident were sealed by the doctor. In her cross examination she has denied having any kind of relations with the landlord. She has also denied the suggestion that she in connivance with the land has implicated the accused. She has explained that initially the accused Ganga Sahay was caught by the public persons but he ran away from the spot taking advantage of the crowd. Here I may observe that the testimony of Anjula finds due confirmation from the DNA profile report which establishes that it was the accused Ganga Sahay who had committed rape upon the victim and also falsifies the defence raised by the accused that it was the landlord who had committed rape upon the child victim and shifted the blame upon him.
(57) Coming now to the testimony of the landlord Surender Singh who has been examined as PW15. He has corroborated the testimony of both child witness 'P' (PW10) and her mother Anjula (PW16). He is an independent witness who has rescued and saved State Vs. Ganga Sahay, FIR No. 169/2012, Police Station Vijay Vihar Page 46 the child victim from the accused. He has also proved that he had caught the accused red handed and also confined Ganga Sahay to the room while in the meanwhile the police was called and a large number of public persons had also gathered but taking advantage of the same the accused slipped away. The relevant portion of the testimony of PW15 Surender Singh is reproduced as under:
".... I have kept cattle on the ground floor whom I am maintaining and remained there during the day. I have given 11 rooms on rent. Ganga Sahay accused present in the court(correctly identified ) was my tenant and was residing in one room with his family comprising of his wife and children.
On 17.05.2012 at about 2/2.30 p.m. while I was putting foddar for the cattle I suddenly heard the scream of a small child from the room of Ganga Sahay.
When I saw towards the direction suddenly the scream stopped. There were other tenants in the vicinity they also informed me that they have heard the screams from the room Ganga Sahay and suspect that something had happened. I went towards the room, the room was shut but there was a gap in the door and one can see inside and I saw Ganga Sahay and the child 'P' who is his daughter in a half naked condition and 'P' was screaming and crying. I pushed the door and State Vs. Ganga Sahay, FIR No. 169/2012, Police Station Vijay Vihar Page 47 opened it . I found her bleeding from her private parts. I asked the child what had happened initially she kept on crying and did not tell me nothing but after sometime she told me that her father had done a galat kaam with her on which I immediately called up the police on 100 No. from my mobile No. 9312596388 and till the police came to the spot I alongwith the other public persons kept Ganga Sahay in one room (Ganga Sahay Ko Kamare Me Rok Diya). Large numbers of public gathered at the spot and while I was trying to contact the mother of the child, Ganga Sahay taking advantage of the crowd slipped away from the room. I sent a child to fetch the wife of Ganga Sahay namely Anjula when she came the child told her what had happened. In the meanwhile the police also came and took the child and her mother with them for her treatment. In the evening the police again came to the spot and on my pointing out prepared the site plan of the room which is already Ex.
PW13/D and recorded my statement thereafter.
(58) In his cross examination, the witness Surender Singh has denied the suggestion that he was having illicit relations with the wife of the accused Ganga Sahay. At the cost of the repetition I may again observe that the defence so raised by the accused Ganga Sahay is totally unfounded in view of the specific report of the DNA which State Vs. Ganga Sahay, FIR No. 169/2012, Police Station Vijay Vihar Page 48 conclusively connects the accused Ganga Sahay to the offence (in view of the DNA profile of the accused Ganga Sahay matching with the semen stains taken from the vaginal swab of the child victim).
(59) In view of the above, the testimony of the various witnesses which is trustworthy and reliable and found clinching corroboration from the DNA report which confirms that the semen stains taken from the vaginal swab of the child prosecutrix were matched with the DNA extracted from the accused and also in view of the fact that it appears impossible that a small child would falsely implicate her own father or that a wife would implicate a person who has fathered her five children. I hereby hold the accused Ganga Sahagi liable for the offence under Section 376 (2) (f) Indian Penal Code.
FINAL CONCLUSION:
(60) In the case of Sharad Birdhichand Sarda Vs. State of Maharastra reported in AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established.
The circumstances concerned 'must or should' and not 'may be' established;
State Vs. Ganga Sahay, FIR No. 169/2012, Police Station Vijay Vihar Page 49
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
(61) Applying the settled principles of law to the facts of the present case it is evident that the investigation conducted including the documents prepared in the present case have been substantially proved by the police witnesses including the first and the second investigating officers. On the basis of the testimonies of the various prosecution witnesses, medical, forensic and circumstantial evidence on record, the following aspects stand established:
➢ That the accused Ganga Sahay, a rickshaw puller by profession, is the natural father of the child victim 'P' and is the husband of the complainant/ mother of the child victim. ➢ That the accused is a compulsive and habitual alcoholic who physically abused his wife and the children. State Vs. Ganga Sahay, FIR No. 169/2012, Police Station Vijay Vihar Page 50 ➢ That on the date of of incident i.e. 17.5.2012 the accused had left in the morning for his job while mother of the child has gone to the factory for work and the children were sleeping in the room.
➢ That the accused came back home in the afternoon in a state of intoxication after which he committed rape upon the child prosecutrix 'P'.
➢ That when the child screamed, the landlord who was on the ground floor attending to his cattle rushed to the the room of the accused which room was closed but there was a gap in the door and through the gap he saw Ganga Sahay and the child 'P' in a half naked condition and the child 'P' was screaming and crying.
➢ That Surender Singh pushed the door and opened it and found the child 'P' bleeding from her private parts on which he asked the child what had happened.
➢ That initially the child 'P' kept on crying and did not tell Surender Singh anything but after sometime she told him that her father had done galat kaam with her.
➢ That Surender Singh immediately called up the police on 100 No. from his mobile No. 9312596388. ➢ That till the police came to the spot Surender Singh along with other public persons kept Ganga Sahay in one room. State Vs. Ganga Sahay, FIR No. 169/2012, Police Station Vijay Vihar Page 51 ➢ That large numbers of public gathered at the spot and while Surender Singh was trying to contact the mother of the child, taking advantage of the crowd the accused Ganga Sahay slipped away from the room.
➢ That in the meanwhile a telephone call was made to the mother of the child namely Anjula who rushed back home and came to know about the incident.
➢ That when the police came to the spot since the child was heavily bleeding from her private parts and bitterly crying in pain and her condition was deteriorating, therefore she was immediately rushed to the hospital where she remained admitted for almost five days while treatment was given to her. ➢ That in the evening the mother of the prosecutrix namely Anjula came back to the house and both she and the landlord Surender showed the police the place where the incident had taken place.
➢ That in the evening the accused Ganga Sahay was arrested pursuant to a secret information. ➢ That the medical examination of the child victim was got conducted and her samples were taken by the doctors. ➢ That the hymen of the child 'P' was torn and clotted blood was present on perineum and abrasion on posterior vaginal wall.
State Vs. Ganga Sahay, FIR No. 169/2012, Police Station Vijay Vihar Page 52 ➢ That since the child was very small around years of age and had not yet achieved menarche therefore the clotted blood of perineum (area around the vagina) and abrasion on posterior vaginal wall were indicative of a forced sexual assault on the child.
➢ That the child 'P' was experiencing slight discomfort in walking because of the pain she experienced in the lower abdomen and perineum.
➢ That the alleles from the source of blood sample of accused were accounted in the alleles from the source of cotton wool swab of the child prosecutrix 'P', which conclusively connect the accused Ganga Sahay with the commission of the offence (because the semen stains present in the vaginal swab which had been taken from the prosecutrix were similar to the DNA profile of the accused). (62) There are two stages in criminal prosecution. First obviously is commission of crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or has not been proved in evidence at trial, the question which arise is whether it would absolve the liability of the culprit who has committed the offence? The answer is obviously in negative, since any Police Station e on the part of the investigation does not negate State Vs. Ganga Sahay, FIR No. 169/2012, Police Station Vijay Vihar Page 53 the offence.
(63) The prosecution has proved the identity of the accused, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by medical evidence and the witness of the prosecution have been able to built up a continuous link.
(64) In view of the above, I hereby hold that the prosecution has been able to prove and substantiate the allegations against the accused Ganga Sahay beyond reasonable doubt, of having committing rape upon his daughter 'P' for which he is held guilty of the offence under Section 376 (2) (f) Indian Penal Code and accordingly convicted.
(65) Be listed for arguments on sentence on 16.10.2012.
Announced in the open Court (Dr. KAMINI LAU)
Dated: 10.10.2012 ASJ (NW)II: ROHINI
State Vs. Ganga Sahay, FIR No. 169/2012, Police Station Vijay Vihar Page 54
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST): ROHINI COURTS: DELHI Sessions Case No. 53/2012 Unique Case ID: 02404R0164772012 State Vs. Ganga Sahay S/o Ram Sakal Sahay R/o C8, Mange Ram Park, Pooth Kalan, Delhi.
(Convicted) FIR No.: 169/2012 Police Station: Vijay Vihar Under Section: 376 (2) (f) Indian Penal Code Date of judgment: 10.10.2012 Arguments concluded on: 20.10.2012 Date of sentence: 26.10.2012 APPEARANCE:
Present: Sh. Sukhbeer Singh, Addl. Public Prosecutor for the State.
Convict Ganga Sahay in judicial custody with Sh. Rajeev Kaul Advocate/ Amicus Curiae.
ORDER ON SENTENCE:
Child sexual abuse are dark realities in Indian society like in any other nation. 53 per cent of our children are sexually abused, State Vs. Ganga Sahay, FIR No. 169/2012, Police Station Vijay Vihar Page 55 according to a statistic from a survey done by the Government of India. A 1985 study by the Tata Institute of Social Sciences reveals that one out of three girls and one out of 10 boys had been sexually abused as a child. 50% of child sexual abuse happens at home. In 1996, Samvada, a Bangalore based NGO, conducted a study among 348 girls. 15% were used for masturbation mostly by male relatives when they were less than 10 years old. 75% of the abusers were adult family members. A report from RAHI, (Recovering and Healing from Incest), a Delhi based NGO working with child sexual abuse titled Voices from the Silent Zone suggests that nearly three quarters of upper and middle class Indian girls are abused by a family member often by an uncle, a cousin or an elder brother.
This unfortunate case relates to one such case of a child 'P' aged around 10 years who was subjected to incestuous rape by the convict Ganga Sahay who is her natural father. As per allegations on 17.5.2012 at about 12:30 PM the accused Ganga Sahay the natural father of the prosecutrix 'P' a rickshaw puller by profession came back in an intoxicated state and found his children sleeping while his wife was away to work. He in this state committed rape upon his daughter 'P' a child of 910 years.
On the basis of the testimonies of the child prosecutrix 'P', her mother Smt. Anjula, their landlord Sh. Surender Singh, medical, forensic and other circumstantial evidence on record, this Court vide State Vs. Ganga Sahay, FIR No. 169/2012, Police Station Vijay Vihar Page 56 a detailed judgment 10.10.2012 held that the case against Ganga Sahay stood established. It has been observed by this Court that it stood established that the accused Ganga Sahay a rickshaw puller by profession, is the natural father of the child victim 'P' and is the husband of the complainant/ mother of the child victim; that he is a compulsive and habitual alcoholic who physically abused his wife and the children; that on the date of of incident i.e. 17.5.2012 the accused had left in the morning for his job whereas mother of the child has gone to the factory for work and the children were sleeping in the room; that the accused came back home in the afternoon in a state of intoxication after which he committed rape upon the child prosecutrix 'P'; that on hearing the screams of the child the landlord Surender Singh who was on the ground floor attending to his cattle, rushed to the room of the accused which room was closed but there was a gap in the door and through the gap he saw Ganga Sahay and the child 'P' in a half naked condition and the child 'P' was screaming and crying; that Surender Singh pushed the door and opened it and found the child 'P' bleeding from her private parts on which he asked the child what had happened; that initially the child 'P' kept on crying and did not tell Surender Singh anything but after sometime she told him that her father had done galat kaam with her; that Surender Singh immediately called up the police on 100 No. from his mobile No. 9312596388; that till the police came to the spot Surender Singh State Vs. Ganga Sahay, FIR No. 169/2012, Police Station Vijay Vihar Page 57 along with other public persons kept Ganga Sahay in one room; that large numbers of public gathered at the spot and while Surender Singh was trying to contact the mother of the child, Ganga Sahay taking advantage of the crowd slipped away from the room; that in the meanwhile a telephone call was made to the mother of the child namely Anjula who rushed back home and came to know about the incident; that when the police came to the spot since the child was heavily bleeding from her private parts and bitterly crying in pain and her condition was deteriorating, therefore she was immediately rushed to the hospital where she remained admitted for almost five days while treatment was given to her; that in the evening the mother of the prosecutrix namely Anjula came back to the house and showed the police the place where the incident had taken place; that in the evening the accused Ganga Sahay was arrested pursuant to a secret information; that the medical examination of the child victim was got conducted and her samples were taken by the doctors.
The medical evidence on record established that the hymen of the child 'P' was torn and clotted blood was present on perineum and abrasion on posterior vaginal wall. It has also been established that since the child was very small around years of age and had not yet achieved menarche therefore the clotted blood of perineum (area around the vagina) and abrasion on posterior vaginal wall were indicative of a forced sexual assault on the child. It also State Vs. Ganga Sahay, FIR No. 169/2012, Police Station Vijay Vihar Page 58 stood established that the child 'P' was experiencing slight discomfort in walking because of the pain she experienced in the lower abdomen and perineum. Further, it stood established from the DNA (Finger Printing Report) that the alleles from the source of blood sample of accused were accounted in the alleles from the source of cotton wool swab of the child prosecutrix 'P', which conclusively connect the accused Ganga Sahay with the commission of the offence (because the semen stains present in the vaginal swab which had been taken from the prosecutrix were similar to the DNA profile of the accused).
In view of the above background, this Court held that the accused has not only committed the incest rape but he is the natural father of the child victim who was in his custody and by virtue of the same he has also committed a custodial rape and hence he has been held guilty of the offence under Sections 376 2 (f) Indian Penal Code and accordingly convicted.
Heard arguments on the point of sentence. Ld. Amicus Curiae appearing on behalf of the convict has prayed that a lenient view be taken against the convict. He has argued that the convict Ganga Sahay is aged about 32 years of age having a family comprising of wife, two daughters (including the prosecutrix) and two sons. He is totally illiterate and is a rickshaw puller by profession. The convict has already remained in judicial custody for State Vs. Ganga Sahay, FIR No. 169/2012, Police Station Vijay Vihar Page 59 about five months. According to the Ld. Amicus Curiae, the convict is not involved in any other case and is a first time offender.
On the other hand, the Additional Public Prosecutor for the State has requested for the maximum sentence to be imposed upon the convict submitting that the convict Ganga Sahay who is the natural father of the prosecutrix 'P' has committed "intrafamilial child sexual abuse" upon the prosecutrix 'P' and hence, deserves no leniency.
I have considered the rival contentions. The Delhi High Court in the case of Khem Chand Vs. State of Delhi reported in 2008 (IV) JCC 2497 enumerated the principle factors to be taken into account by the courts while assessing as to what could be the appropriate sentence in a given case. Some of the factors enumerated are (i) Criminal and Crime, (ii) Manner of Commission of offence,
(iii) Violence involved, (iv) Whether the offender or accused was in a position of fiduciary, trust or exploited a social or family relationship, (v) State of victim, impact of crime on the victim.
The Hon'ble Supreme Court while considering the question of quantum of sentence in the case of State of Rajasthan Vs. Gajender Singh reported in 2008 (III) JCC 2061 observed as under:
"... the law regulates social interests, arbitrates conflicting claims and demands. Security of State Vs. Ganga Sahay, FIR No. 169/2012, Police Station Vijay Vihar Page 60 persons and property for the people is an essential functions of the state. It could be achieved through the instrumentality of criminal law. Undoubtedly, there is a cross cultural conflict where living law must find answer to the new challenges and the courts are required to mould the sentencing system to meet these challenges. The contagion of lawlessness would undermine social order and lay it in ruins...."
The Hon'ble Apex Court has time and again stressed upon the need for awarding the punishment for a crime which should not be irrelevant but should be conform to and be consistent with the atrocity and the brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence of the crime and responding to the society's cry for justice against the criminal. (Ref. Rajiv Vs. State of Rajasthan reported in 1996 (II) SCC 175).
The Hon'ble Supreme Court has in the judgment of State of Andhra Pradesh Vs. Gangula Satya Murthy reported in JT 1996 (10) SC 550, observed as under:
"Courts are expected to show great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity.."
It has been held by the Hon'ble Supreme Court in the case reported in AIR 2000 Supreme Court 1470 that:
State Vs. Ganga Sahay, FIR No. 169/2012, Police Station Vijay Vihar Page 61 Socioeconomic, status, religion, race caste or creed o the accused or the victim are irrelevant considerations in sentencing policy. Protection of society and deterring the criminal is the avowed object of law and that is required to be achieved by imposing an appropriate sentence. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence. Courts must hear the loud cry for justice by the society in cases of heinous crime of rape on innocent helpless girls of tender years, and respond by imposition of proper sentence. Public abhorrence of the crime needs reflection through imposition of appropriate sentence by the court. It was also observed by the Hon'ble Court that it is necessary for the court to keep in mind that the object should be to protect the society and to deter the criminal in achieving the avowed object to law by imposing appropriate sentence. The Courts are expected to operate the sentencing system so as to impose such sentence which reflects the conscience of the society and sentencing process has to be stern where it should be. (Ref: Siddarama and Ors. Vs. State of Karnataka reported in 2006 IV AD (Crl.) SC 78).
The object of sentence is not only required to be reformative but it should also be punitive, preventive and deterrent. The hon'ble Supreme Court has while considering the sentencing State Vs. Ganga Sahay, FIR No. 169/2012, Police Station Vijay Vihar Page 62 policy in the case of Siddarama and Ors. Vs. State of Karnataka reported in 2006 IV AD (Crl.) SC 78 has observed that:
"........law regulates social interests, arbitrates conflicting claims and demands. Undoubtedly, there is a cross cultural conflict where living law must find answer to the new challenges and the courts are required to mould the sentencing system to meet the challenges. The contagion of lawlessness would undermine social order and lay it in ruins. Friedman in his "Law in Changing Society" stated that, "State of criminal law continues to be as it should be a decisive reflection of social unconsciousness of society".
Therefore, in operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix. By deft modulation sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the move for commission of the crime, the conduct of the accused, and all other attending circumstances are relevant facts which would enter into the area of consideration......" The Hon'ble Court has further observed that:
"...........The criminal law adheres in general to the principle of proportionality in prescribing liability according to the culpability of each kind of criminal conduct. It ordinarily allows some significant discretion the the judge in arriving at State Vs. Ganga Sahay, FIR No. 169/2012, Police Station Vijay Vihar Page 63 a sentence in each case, presumably to permit sentences that reflect more subtle considerations culpability that are raised by the special facts of each case. Judges in essence affirm that punishment ought always to fit the crime; yet in practice sentences are determined largely by other considerations. Sometimes it is the correctional needs of the perpetrator that are offered to justify a sentence. Sometimes the desirability of keeping him out of circulation and sometimes even the tragic results of his crime. Inevitably these considerations cause a departure from just desert as the basis of punishment and create cases of apparent injustice that are serious and widespread......"
"......Proportion between crime and punishment is a goal respected in principle, and in spite of errant notions, it remains a strong influence in the determination of sentences. The practice of punishing all serious crime with equal severity is now unknown in civilized societies, but such a radical departure from the principle of proportionality has disappeared from the law only in recent times. Even now for a single grave infraction drastic sentences are imposed. Anything less than a penalty of greatest severity for any serious crime is through then to be a measure of toleration that is unwarranted and unwise. But in fact, quite apart from those considerations that make punishment unjustifiable when it is out of proportion to the crime, uniformly disproportionate punishment had some very undesirable practice State Vs. Ganga Sahay, FIR No. 169/2012, Police Station Vijay Vihar Page 64 consequences.."
The offence of rape is barbaric in nature where the victim is ravished like an animal for the fulfillment of desire and lust of another man. As observed by Hon'ble Mr. Justice Arijit Pasayat a murderer destroys the physical frame of the victim whereas the rapist degrades and defiles the soul of a helpless female. As per the official statistics a total number of 568 cases of rape have been reported in Delhi alone in the year 2011 out of which only 2% have been committed by strangers. The figure would be much high but most of the cases are not reported by the victims because of the various reasons such as family pressure, behaviour of the police, the unreasonably long and unjust process and application of law and resulting consequences thereof.
The convict had raped his own daughter who had not even attained the age of menarche and as if this was not enough, he tried to shift the blame on that very person (i.e. landlord) who had saved the child from his clutches by alleging that his wife was into a relationship with the said landlord and therefore both of them were falsely implicating him which lies stood exposed by the DNA Finger Printing Report which confirmed that it was the convict Ganga Sahay who was the culprit. Had the child not been saved by the landlord Surender, God knows what he would have done, perhaps State Vs. Ganga Sahay, FIR No. 169/2012, Police Station Vijay Vihar Page 65 even killed the child to hide his sins. Does the convict deserve any leniency? The Medical Record of the is child indicative of the intense physical pain and agony which the child must have undergone when the brutal act was committed on her frail body. It indicates that not only the hymen of the child 'P' was torn but there was presence of clotted blood on the perineum, abrasion on the posterior vaginal wall and she was experiencing pain while walking and was hospitalized for almost five days. How could the convict commit this ghastly, abominable, inhuman and barbaric act of violating the person of his own child?
The depravity of the convict Ganga Sahay is not only confined to the post sexual assault of his child but gets compounded by the fact that he without any remorse in order to hide his sins tried to shift the entire blame on a good Samaritan who had intervened to save the child and in doing so, he did not even spare his own wife. It is this conduct of the convict Ganga Sahay which disentitles him to any leniency from this Court. Therefore, the convict Ganga Sahay is sentenced to Rigorous Imprisonment for Life and fine to the tune of Rs.10,000/ for the offence under Section 376 (2) (f) Indian Penal Code. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of one month.
Benefit of Section 428 Cr.P.C. shall be given to the State Vs. Ganga Sahay, FIR No. 169/2012, Police Station Vijay Vihar Page 66 convict for the period undergone by him during the trial, as per rules.
Coming now the victim/ prosecutrix 'P', keeping in view the physical and psychological condition of the prosecutrix and in an attempt to provide Restorative and Compensatory Justice to the victim, this Court, had vide order dated 3.9.2012 granted an interim compensation to the tune of Rs. One lacs to the prosecutrix 'P' alongwith professional psychological counselling and necessary medical aid, which directions I am informed, are being complied with by the State. In continuation to the aforesaid, I hereby award a total compensation to the tune of Rs.2,00,000/ (Rs. Two Lacs) out of which Rs.1,00,000/ (Rs. One Lac) has already been awarded as interim compensation vide order dated 3.9.2012. I direct the GNCT of Delhi through Principal Secretary (Home) to ensure the disbursement of the entire amount of Rs.2,00,000/ (i.e. Rs. One Lac interim compensation and Rs. One lac now awarded) to the prosecutrix 'P' D/o Ganga Sahay, R/o C8, Mange Pam Park, Pooth Kalan, Delhi preferably within a period of one month from today. Copy of this order is directed to be placed before the Principal Secretary (Home), Govt. of NCT of Delhi for compliance under intimation to this Court.
The convict is informed that he has a right to prefer an appeal against this judgment. He has been apprised that in case he State Vs. Ganga Sahay, FIR No. 169/2012, Police Station Vijay Vihar Page 67 cannot afford to engage an advocate, he can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 3437, Lawyers Chamber Block, High Court of Delhi, New Delhi.
Copy of the judgment and order on sentence be given to the convict free of costs and another copy of sentence be attached along with his jail warrants.
File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU) Dated: 26.10.2012 ASJ (NW)II: ROHINI State Vs. Ganga Sahay, FIR No. 169/2012, Police Station Vijay Vihar Page 68